Law Commons^™

Taking Distribution Seriously, Robert C. Hockett

Robert C. Hockett

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing. To attend systematically to the inter-translatability of maximization language on …

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Robert C. Hockett

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

Time For Change: Bringing Massachusetts Homestead And Personal Property Exemptions Into The Twenty-First Century, Lee Harrington

University of Massachusetts Law Review

There are presently two pieces of legislation pending on Beacon Hill that are intended to offer amendments to the Homestead Statute and Exemption Statute that would offer meaningful changes and real relief for the citizens of the Commonwealth. This article provides a brief history of the two statutory schemes, provides some comparisons to the schemes in other states, and highlights the changes sought by the proposed amendments.

Computer Programs Under The United States Intellectual Property System: Sui Generis Legislation Is Needed, Joseph Francis Agnelli, Iii

University of Massachusetts Law Review

Section I of this article explores the different avenues of intellectual property protection presently available for computer software here in the United States. Section II then discusses how the European Community has resolved the computer program crisis under European intellectual property law. Lastly, section III will illustrate why sui generis legislation would be the paramount way for Congress to attack the intricacy that is created by computer programs under American intellectual property law.

State Sovereign Immunity And Intellectual Property: An Evaluation Of The Trademark Remedy Clarification Act’S Attempt To Subject States To Suit In Federal Courts For Trademark Infringements Under The Lanham Act, Jennifer L. Fessler

University of Massachusetts Law Review

There are two things that can be learned from this paper. First, the analytical framework developed by the Court in City of Boerne is a stringent test that has considerably narrowed Congress’s ability to abrogate state’s Eleventh Amendment immunity through legislation. Second, only half of the battle was won when Congress enacted the Trademark Remedy Clarification Act. Although it met the new requirements the Court placed on legislative efforts in Atascadero, it is not able to meet the requirements that were later set forth in Seminole Tribe. The Rehnquist Court’s holdings indicate the Court’s active pursuit of state’s …

The Veterans Clinic And Legal Education: A Conversation With Professor Steven Berenson, Steven Berenson, Paul Lee

University of Massachusetts Law Review

This Article is a conversation between Professor Berenson and the UMass Law Review, discussing both his experience setting up the Clinic and the Clinic’s achievements. Part II provides a brief introduction to Professor Berenson’s work and how he started the TJSL Veterans Clinic. Part III considers veterans particular legal needs and how the Clinic addresses these issues. The Article concludes with some remarks from Professor Berenson regarding the future of the Clinic, and the overall movement of law schools toward greater practical education.

Maria’S Law: Extending Insurance Coverage For Fertility Preservation To Cancer Patients In Massachusetts, Brittany Raposa

University of Massachusetts Law Review

This Note addresses the issues related to fertility preservation treatments for cancer patients in the context of insurance coverage. As cancer survival rates improve, the ability to bear children after therapy is increasingly difficult and a concern for most patients. Currently, no states have laws requiring insurance coverage for fertility preservation treatments for cancer patients. Because it is not currently covered by either private or public insurance, only those who can pay for it on their own can use fertility preservation treatments. This note proposes that Massachusetts, as having one of the most inclusive infertility health insurance mandates, should expand …

The Case For Extending Pretrial Diversion To Include Possession Of Child Pornography, Sarah J. Long

University of Massachusetts Law Review

Pretrial diversion removes offenders with a low-risk of reoffending from the penal system and instead sends them to supervised treatment programs. The result is lower cost to the state and a second chance for those who successfully complete the program. Typically, violent crimes, such as murder and attempted murder, are exempt from pretrial diversion. Notably, sex related crimes are also ineligible in all jurisdictions. By excluding all sex-related crimes from pretrial diversion, possession of child pornography is adjudicated by the courts. As a result, young, first-time offenders who may be candidates for treatment are bundled with physical offenders, members of …

Fixing Florida's Execution Lien Law Part Two: Florida's New Judgment Lien On Personal Property, Jeffrey Davis

Jeffrey Davis

Under both the prior and current laws, a creditor seeking to satisfy a judgment out of property of the judgment debtor obtains a writ of execution from the clerk of the court that issued the judgment and then delivers the writ to a sheriff in one of Florida's sixty-seven counties. The writ commands the sheriff to levy on property of the debtor until the amount stated in the writ is satisfied. Under the prior law, delivery of the writ to the sheriff not only initiated the execution process, but under the seminal case of Love v. Williams, it also created …

Passing The Torch But Sailing Too Close To The Wind: Congress’S Role In Authorizing Administrative Branches To Promulgate Regulations That Contemplate Criminal Sanctions, Reem Sadik

Legislation and Policy Brief

The Supreme Court has stated that Congress must simply “lay down by legislative act an intelligible principle” to which the agency must conform. If this is done, a court will find the delegation of broad authority to the agency to be constitutional. There is, however, an open issue regarding whether the “intelligible principle” standard applies to delegations of authority that allow for the promulgation of both civil and criminal penalties. In Touby v. United States, the Supreme Court was asked whether “something more than an ‘intelligible principle’ is required” when Congress authorizes an agency to issue regulations that contemplate …

Workshop Democracy: Making Policy In Cote D'Ivoire, Max Levin

Max Levin

Development experts would benefit from a better understanding of how policy is made in developing countries. In this article, I describe how health policy is made in Cote d’Ivoire, from the perspective of a Westerner embedded in the Ministry of Health for 10 months. I provide a narrative of how one health system reform—performance-based financing—moved from policy idea to enacted reform. I describe the origins of the reform in Cote d’Ivoire, how the government came to support the reform, and then the mechanics of how the reform was enacted. I then present observations on how policymaking in Cote d’Ivoire differs …

Supreme Court, New York County, Khrapunskiy V. Doar, Daphne Vlcek

Touro Law Review

No abstract provided.

Mutual Pharmaceutical Co. V. Bartlett: A Need For “Explicit” Congressional Action And State Tort Law Reform, Kara A. Ritter

Kara A Ritter

No abstract provided.

Chevron Inside The Regulatory State: An Empirical Assessment, Christopher J. Walker

Christopher J. Walker

For three decades, scholars (as well as courts and litigants) have written thousands of articles (and opinions and briefs) concerning the impact of the Chevron deference regime on judicial review of agency statutory interpretation. Little attention, however, has been paid to how Chevron and its progeny have actually shaped statutory interpretation inside the regulatory state. As part of the Fordham Law Review symposium Chevron at 30: Looking Back and Looking Forward, this Essay presents the findings of the first comprehensive empirical investigation into the effect of Chevron and related doctrines on how federal agencies interpret statutes they administer.

The Essay …

Involuntary Cotenants: Eminent Domain And Energy And Communications Infrastructure Growth, Andrew P. Morriss, Roy Brandys, Michael M. Barron

LSU Journal of Energy Law and Resources

No abstract provided.

Virginia's Gap Between Punishment And Culpability: Re-Examining Self-Defense Law And Battered Women's Syndrome, Kendall Hamilton

University of Richmond Law Review

No abstract provided.

Foreword — Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker

Christopher J. Walker

This Foreword introduces a Fordham Law Review symposium held in March 2014 to mark the thirtieth anniversary of Chevron U.S.A. v. Natural Resources Defense Council. The most-cited administrative-law decision of all time, Chevron has sparked thirty years of scholarly discussion concerning what Chevron deference means, when (or even if) it should apply, and what impact it has had on the administrative state. Part I of the Foreword discusses the symposium contributions that address Chevron’s scope and application, especially in light of City of Arlington v. FCC. Part II introduces the contributions that explore empirically and theoretically Chevron’s impact outside of …

Comment On The Fhfa's Small Multifamily Subgoal, David J. Reiss, Jeffrey Lederman

David J Reiss

As the FHFA sets the housing goals for 2015-2017, it should focus on maximizing the creation and preservation of affordable housing. Less efficient proposed subgoals should be rejected unless the FHFA has explicitly identified a compelling rationale to adopt them. The FHFA has not identified one in the case of the proposed small multifamily subgoal. Thus, it should be withdrawn.

Mexico's Legal Revolution: An Appraisal Of Its Recent Constitutional Changes, 1988-1995, Jorge A. Vargas

Georgia Journal of International & Comparative Law

No abstract provided.

Material Conditions For The Law Of Democracy: The Problem Of Information Asymmetry In Voting Decisions., Rafael E De O Baptista

Rafael E de O Baptista

The proposal of the present paper is to explore the informational asymmetry that exists between politicians and citizens, especially towards voting, and directives for regulation and public policies that may diminish it. We develop a reading of the specialized literature, alongside the case study of a civil society organization that develops this institutional role in the city of Jundiaí, Brazil, which, albeit restricted geographically, leads up to broader implications. Based on these sets of data, we develop the following argument: information asymmetry is a problem in any context where rationality in voting decisions are a value to be pursued. In …

Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski

Faculty Publications

For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …

Introduction To The Micro-­‐‑Symposium On Scalia & Garner's “Reading Law”:The Textualist Technician, Karen Petroski

All Faculty Scholarship

Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, …

Intuitive Planning, Emily M. Morris

South Carolina Law Review

No abstract provided.

Shareholder Liability In Nova Scotia Unlimited Companies, Mohamed F. Khimji

Dalhousie Law Journal

Unlimited Companies incorporated under the Nova Scotia Companies Act (NSULCs) have, in recent decades, become recognized as tax efficient forms of business organizations. NSULCs differ from conventional business corporations in that their shareholders are exposed to liability for corporate obligations under the enabling legislation. This paper attempts to provide an analysis of the precise nature of unlimited liability faced by shareholders in such entities in response to recent bankruptcy litigation in the U.S. that raised the issue of the relationship between a shareholder's liability for a debt of the firm under the enabling legislation and under a contractual guarantee provided …

Combating Cyber-Victimization, Jacqueline D. Lipton

Akron Law Faculty Publications

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …

Regulation Of Chemical Risks: Lessons For Tsca Reform From Canada And The European Union, Adam Abelkop, John D. Graham

Adam Abelkop

The United States Congress is considering reform of the Toxic Substances Control Act (TSCA) of 1976. This Article compares recent reforms in Europe and Canada in order to draw lessons for TSCA reform. In 2006, the European Union enacted the Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regulation while Canada used existing authority under the Canadian Environmental Protection Act (CEPA) of 1999 to initiate the 2006 Chemicals Management Plan (CMP). Focusing on the tens of thousands of industrial chemicals now in use in the US, we offer several suggestions for TSCA reform based on the European and Canadian experiences. …

Charitable Giving, Tax Expenditures, And Direct Spending In The United States And The European Union, Lilian Faulhaber

Faculty Scholarship

This Article compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic equivalence …

The Ciudades Modelo Project: Testing The Legality Of Paul Romer’S Charter Cities Concept By Analyzing The Constitutionality Of The Honduran Zones For Employment And Economic Development, Michael R. Miller

Michael R Miller

Over the last several years, the Honduran government has been aggressively advancing a "model cities" project that it argues will provide options for its citizens to escape the extreme violence in their country without migrating to the U.S. The model cities, which are formally called "Zones for Employment and Economic Development" ("ZEDEs"), are purported to be autonomously governed areas that will attract foreign investment and compete for residents by establishing safer communities and better managed institutions governed by the rule of law.

The ZEDEs trace their origin to a concept formulated by development economist Paul Romer, who proposed the idea …

Minding Your Meds: Balancing The Needs For Patient Privacy And Law Enforcement In Prescription Drug Monitoring Programs, Devon T. Unger

West Virginia Law Review

No abstract provided.

The Protection From Harassment Act 2014: Legislative Comment, Yihan Goh, Man Yip

Research Collection Yong Pung How School Of Law

The Protection from Harassment Act 2014 (“Act”) was passed by Parliament on 13 March 2014 following its Second Reading. The Act is a culmination of a concerted ministerial effort to bring about legislative change to the laws governing harassment. Bringing together the background to the Act, its general structure and its specific provisions, this article aims to add to the undoubted long list of commentaries on the Act and, it is hoped, contribute to the understanding and enforcement of the Act.